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2008 Supreme(P&H) 14
PUNJAB & HARYANA HIGH COURT
Ranjit Singh, J.
Raman Kumar
Versus
Baksho Thandi
First Appeal Order No. 203 M of 2007,
Decided On : JANUARY 7, 2008
Divorce--Cruelty--Wife did not allow the husband to co-habit marriage--Husband was not allowed to consummate marriage.
Headnote:(A) Marriage Law--Divorce--Mental cruelty-- It is difficult to establish the fact of mental cruelty by any direct evidence. This is to be drawn as a matter of inference from the facts and circumstances of the case--Hindu Marriage Act, 1955, Section 13.
(B) Marriage Law--Divorce--Cruelty--Cruelty is a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other--Hindu Marriage Act, 1955, Section 13. (Para 5)
(C) Marriage Law--Cohabitation--Expression cohabitation--Legal position explained-
(i) The meaning of word "Cohabitation", which was found to mean living together etc. and not `sexual intercourse.
(ii) "Cohabitation" means living together as husband and wife.
(iii) Husband and wife cohabit by living together as husband and wife, the husband behaving as a husband and the wife behaving as a wife, doing housewifely duties.
(iv) "Cohabitation" implies a state of affairs very different from that of mere residence. It must mean that the wife is acting as a wife and has kept her status and position as a wife.
(v) "Cohabitation" may mean living together in a matrimonial home in amity.
(vi) Though cohabitation means living together as husband and wife--Necessarily does not depend upon sexual intercourse between the husband and the wife--It may not be possible to say that cohabitation would mean only living together and would exclude sexual relationship--Hindu Marriage Act, 1955.
(D) Marriage Law--Expression--Consortium--Explained:-
(i) "Consortium means "companionship, love, affection, comfort, mutual services, sexual intercourse.
(ii) It implies a companionship between each of them, entertainment of mutual friends, sexual intercourse-all those elements which, when combined, justify the old common law dictum that a man and his wife are one person--Hindu Marriage Act, 1955.
(E) Marriage Law--Divorce--Cruelty--Allegations that wife has not allowed the appellant to have normal sexual relationship with her--Respondent-wife did not allow the appellant-husband to co-habit marriage--Husband was not allowed to consummate marriage--Broken relationship--Respondent-wife has not continued with the respondent and not participated to contest divorce petition before the trial Court after filing reply--The plea of appellant is not negatived from the evidence and material on record--Divorce petition allowed--Hindu Marriage Act, 1955, Section 13.
Based on the provided legal document, the key points are as follows:
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The case involves a divorce petition filed under the Hindu Marriage Act, 1955, on the grounds of cruelty and non-cohabitation (!) .
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The marriage was solemnized on April 11, 2003, and the couple lived together for approximately 27 days before the wife moved to Canada and the couple faced issues related to cohabitation and sexual relations (!) .
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The husband alleged that the wife refused to cohabit both in India and Canada, and that he was not allowed to consummate the marriage, which he claimed amounted to mental cruelty (!) .
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The wife contested the petition, claiming that she maintained an intimate relationship and cohabited with her husband in both India and Canada, denying the allegations of cruelty and non-cohabitation (!) .
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The trial court analyzed the meaning of "cohabitation," clarifying that it involves living together as husband and wife, which does not necessarily require sexual intercourse (!) (!) .
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The court emphasized that cohabitation entails acting as a husband and wife, performing household duties, and maintaining the marital relationship, even in the absence of sexual relations (!) (!) .
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The court observed that the husband's allegations regarding denial of sexual relations were not sufficiently supported by evidence, and that the overall conduct did not establish cruelty (!) (!) .
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The wife’s failure to participate actively in the proceedings and her absence from subsequent hearings were noted, but the court acknowledged her initial willingness to maintain the relationship (!) (!) .
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The court recognized that mental cruelty can be inferred from the behavior and circumstances of the parties, and that the overall conduct of the wife could be considered as mental cruelty towards the husband (!) (!) .
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Ultimately, the court found that the marriage had broken down and that the grounds for divorce were established, leading to the allowance of the husband's appeal and the granting of a divorce decree (!) .
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The judgment emphasized that the interpretation of "cohabitation" and "consortium" includes living together harmoniously and performing marital duties, not solely sexual intercourse, and that these elements are essential in assessing cruelty and the breakdown of marriage (!) (!) (!) .
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The overall conclusion was that the marriage could not be sustained given the circumstances and conduct of the parties, and the divorce petition was granted accordingly (!) .
Please let me know if you require further analysis or assistance.
1. Appellant-Raman Kumar had filed a petition under S. 13 of the Hindu Marriage Act, 1955 for dissolution of his marriage with Baksho Thandi (respondent) by grant of decree of divorce. The marriage between the appellant and respondent-wife was solemnized on 11-4-2003 at Nawashahr as per Sikh rites. The couple lived together for about 27 days at village Apra, Tehsil Phillaur, District Jalandhar. After marriage, respondent-wife went to Canada and sent sponsorship for the appellant-husband for his immigration to Canada. Ultimately, the appellant-husband joined the company of the wife in Canada on 27-4-2004. The appellant alleges that the wife refused to cohabit while she was in India by saying that they would do so on reaching Canada. The appellant claims that wife refused to cohabit with him while in Canada as well. Allegation by the appellant further is that he was insulted on the ground that he was simply a matriculate and was made to live like a servant and look after the house and house hold works. This, according to the appellant, amounted to his mental torture/cruelty. Averment further is that in the month of July, 2004, he was thrown out of the house and accordingly returned to India on 14-7-2004. Appellant had gone back to Canada during April, 2005 but was not allowed access to the house by the wife. When after lot of persuasion, he was able to enter the house, he noticed to his shocked that the respondent-wife was wearing white sari and proclaimed that she had become widow. It is also alleged that the wife had given some false complaints to the police against the appellant-husband. Fearing fake implication, the appellant came back to India. He has, thus, filed this petition, seeking divorce by inter alia alleging that wife never allowed him to consummate the marriage and, thus, intentionally and wilfully treated the appellant with cruelty.
2. On notice being issued, the wife appeared to contest the petition. Factum of marriage is admitted in the written statement filed by the respondent-wife. She claims to have maintained healthy and intimate relationship with her husband during her stay in India and subsequently in Canada. According to the wife-respondent, the marriage was consummated. She has further stated that even in Canada, they lived together as husband and wife where they cohabited with each other as husband and wife. She has, thus, denied if the appellant was treated with any mental or physical cruelty. The allegations about making the appellant to cook or to attend to the house hold work are also denied. It is rather disclosed that the appellant had come to India on the pretext of completing paper work for dividing his property and their relationship, as such, remained cordial throughout. As per the wife, she learnt about the divorce petition with a shock. She, as such, has pleaded that she was always ready and willing to live with her husband and perform her all marital duties and accordingly prayed for dismissal of the petition.
3. Having analysed the rival contention, the District Judge, Jalandhar, has rejected the claim of the appellant. While declining the petition, the Court observed that averment would not show that the wife had refused sexual intercourse. It is noticed that the pleaded case in the petition is that the respondent-wife did not allow the husband to cohabit while they were in India and Canada. Going into meaning of "cohabitation," the trial Court found that cohabitation is the act of living together in the house, boarding etc. It is further observed that this term would not necessarily mean sexual intercourse. In this regard, reliance is placed on the case of Harvinder Kaur v. Harmander Singh Choudhary, AIR 1984 Delhi 66. Reference is also made to Thomas v. Thomas (1948) 2 KB 294, wherein it is held that cohabitation does not necessarily depend on whether there is sexual intercourse between husband and wife but consists in the husband acting as husband towards wife and wife as wife
